Director of Public Prosecutions v Morgan

[2023] VCC 1636

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00899
CR-22-01837

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN MORGAN

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November 2022, 16 December 2022
DATE OF SENTENCE:	11 September 2023
CASE MAY BE CITED AS:	DPP v Morgan
MEDIUM NEUTRAL CITATION:	[2022] VCC 1636

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence – guilty plea.

Catchwords:              Sentencing – theft – handling stolen goods – trafficking in a drug of dependence - knowingly possess proceeds of crime – young offender – serious example of trafficking – completion of residential rehabilitation – reasonable prospects of rehabilitation – moderate to high risk – reduced culpability – general and specific deterrence – just punishment

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:Verdins v R (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann [2021] VSCA 160; R v Lacey (2007) 176 A Crim R 331; Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169; Jaworski [2020] VCC 293; Dimu [2018] VCC 1336; Gelmi [2020] VCC 864; Akoka v The Queen [2017] VSCA 214.

Sentence:Total effective sentence 407 days imprisonment combined with a 12 month Community Correction Oder; section 6AAA: three years and three months imprisonment with a non-parole period of two years and one month.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Dickens	Office of Public Prosecutions
For the Offender	Mr W. Blake	Sarah Pratt & Assoc.

HIS HONOUR:

1Nathan Morgan, in relation to events in February 2021, you have pleaded guilty to theft, maximum penalty 10 years and handling stolen goods, maximum penalty 15 years.

2In relation to events of 13 April 2022, you have also pleaded guilty trafficking in a drug of dependence, two charges, both maximum penalty 15 years; possessing MDMA with a maximum penalty of one year regarding a quantity unrelated to trafficking; and possessing PCP, maximum penalty five years where I am not able to be satisfied that it had nothing to do with trafficking; knowingly dealing with proceeds of crime, maximum penalty of 20 years, and a summary offence of failing to comply with a direction to assist, namely to provide passwords to devices, maximum penalty two years.

Summary of offending

3The agreed basis for your guilty plea is set out in the prosecution opening of 14 December 2022, which I summarise as follows.

4On 10 February 2021 at about 10.10 pm, you were driving a car on Eastlink that you knew to be stolen (Charge 1, theft). It had in fact been stolen on 8 February from the home of its owner in Heathmont – it is not alleged that you did this.

5On 22 February 2021, police searched your home in Pakenham with the consent of your housemates. In your bedroom they found a police lanyard, a Hermes handbag containing cards belonging to its owner, and you knew those items were stolen (Charge 2, handling stolen goods). The handbag and cards were stolen from their owner’s home in Kew on 17 February 2021, however, you are not charged with that theft.

6On 13 April 2022 at about 5:50 am, police executed a search warrant at a house in Clyde where you were staying. They found you in the bathroom adjoining your bedroom. In your room, they found 491.6 grams of cocaine in mixture (Charge 3, trafficking); 172.3 grams of a methamphetamine mixture (Charge 4, trafficking); 34 grams of PCP (Charge 5, possessing a drug);  0.1 gram of MDMA (Charge 6, possessing a drug); and $4,250 in cash (Charge 7, knowingly possessing proceeds of crime).

7I am satisfied on balance that the quantity of MDMA does not reflect trafficking in that substance and accordingly there is the lower maximum penalty of one year. As for 34 grams of PCP, I am not so satisfied. Accordingly the maximum is five years.

8Police also seized electronic devices belonging to you. They requested you to provide them with relevant passcodes, which you refused to do (summary offence).

9Obviously, the quantities of cocaine and methamphetamine are very much higher than for personal use, and by your plea you concede that you possessed those drugs for the purposes of sale. A commercial quantity of cocaine in a mixture is 500 grams and a commercial quantity of a mixture of methamphetamine is 250 grams.

10Upon finding these drugs and the money, police arrested you and interviewed you. You did not answer their questions, as is your right.

11There are no victim impact statements.

Procedural history

12The 2021 charges originally were accompanied by much more serious allegations upon which you were committed and to which you pleaded not guilty in May 2022. Then in a case conference in November the matter settled.  I regard that plea as being reasonably early given the withdrawal of more serious matters.

13The 2022 charges were settled in September 2022 at committal and I regard that to be an early plea.

14You were arraigned on all of the charges on 4 November 2022 and you pleaded guilty. The fact that you have done so, at a time when trials in this court have been delayed because of the Covid pandemic, is of greater value and of greater utilitarian benefit to the community.

15You have been in custody since your arrest on 13 April 2022, when restrictions relating to the pandemic were reducing, and since that time have reduced considerably. Nevertheless, I find that your time on remand had been somewhat more onerous than it should have been due to lockdowns, quarantine, reduced access to programs and limited visits from family and friends.

16I find that your guilty plea in both matters indicates an acceptance of responsibility on your part, which favours your prospects of rehabilitation.

17Your plea also represents a willingness to facilitate the course of justice, which cooperation is to be encouraged in others by imposing a lower sentence upon you.

18A guilty plea is generally consistent with remorse and I accept in your case that it is, however, you may have some work to do in demonstrating your true attitude to your offending to Corrections given the comments you made during their assessment.  Time will tell.

19In November 2022 you sought, and I permitted you, an opportunity to be assessed by the Drug Court Division of this court. You engaged in that assessment but ultimately your participation there did not proceed. In sentencing you, I have not taken into account against you the assessment or the fact that your case has been returned to this part of the Court.

Personal circumstances

20You were only 20 in 2021 when you offended and you remain relatively young at 22. You grew up in Melbourne, living with your parents until they separated when you were three. From then, until your mid-teens, you lived with one or other of them intermittently. You have a poor relationship with your mother and ultimately left her home when you were 16. Sadly, your father died in 2020 when you were 19. Since leaving home as a teenager, you have been homeless at times but have never lived on the streets. You usually find a place with friends for varying lengths of time. You are close to one of your two sisters and she maintains significant support of you. You also have a large circle of friends who are 'like family', you say, although I have no material from them.

21Having had a difficult time as a teenager, you started using various drugs and getting into trouble with police. You did not enjoy school, you were sometimes bullied, but generally had good relationships with your peers. You were supported in Grade 3 and 4 with one-on-one learning support. By Year 8, however, your problems were mounting and you were expelled. You completed Year 10 and 11 in juvenile detention.

22When not in custody you have been able to work productively in roof tiling and mechanics but in recent times you have been unemployed due to drug use. You told psychologist, Ms Cokorilo, that you were not motivated to work on something for which you lack interest, but you worked in landscaping for a few months before your most recent remand.

23You have a significant criminal history dating back to 2015 when you were 15. In the Children’s Court you were sentenced on 10 occasions, mainly for drug and dishonesty offences. You were sentenced to several rehabilitative community orders as well as detention. Since becoming an adult you have been sentenced in the Magistrates Court three times to imprisonment combined with an order in the community including treatment and rehabilitation. You breached each of them, the latter by this offending. While you are not to be punished again now for your past offending or your lack of success on other orders, I must take this into account when assessing your ability and interest to engage in such an order at this stage.

24You have reported that you have briefly engaged with counsellors in the past under court orders but that you do not like discussing your personal affairs. I understand that. Since 2018 you have been prescribed anti‑depressant medication but you have conceded that you only take it when you cannot sleep because it makes you feel fat.

25In 2021 psychologist, Sandra Cokorilo, assessed you and in a report dated 16 November 2021 (Exhibit 1) detailed your background, psychological health and your risk of offending. Her assessment was conducted after the 2021 offences but before your serious drug trafficking in April 2022.

26You report your drug and alcohol history as dating from around 15 with alcohol, then regular cannabis use and various amphetamine drugs since 16. You admit nearly daily use of cocaine since 2019. Your extensive history of theft-type offences is entirely consistent with your need to support such habits. Your history of using multiple drugs seems to me to be entrenched and will require significant supports and effort on your part to change, which it seems you have begun.

27Ms Cokorilo noted in 2021 that in the context of immaturity and poor insight your view was that you do not need drug treatment or mental health support. She said you seemed to experience moderate levels of depression and only mild anxiety but diagnosed you with moderate post-traumatic stress. She raised concerns about you being institutionalised after regular and increasing times in custody. I accept those observations and find that you will require a significant degree of support, and effort on your part, under supervision on release.

28She noted it would be unlikely that you will receive the specific treatment you need for your post-trauma symptoms in custody. I accept this and that you will need targeted and sustained support about that condition and real effort on your part to engage in it.  It is hard to deal with.

29The psychologist suggested that at the time of her assessment your risk of general offending was high. The events of April 2022 bear that out.

30Your sister, Jayde Morgan, wrote in a letter to the Court dated 13 December 2022 (Exhibit 2) that you have been a supportive older brother to her over the years in spite of your family hardships. She reports that you talk about wanting to change and the impact of your background on you. She concedes that your drug problem is significant, or at least it was, and that you have not been able to find another way to address your underlying challenges in your life.

31Aaron Gilhooley, Manager of The Cottage, a residential rehabilitation service in Shepparton provided a letter confirming your availability of a bed on your release in late last year and again in May of this year - (Exhibits 3 and 5). Mr Gilhooley gave evidence in support of a bail application you made before me on 13 September 2022. I was not satisfied at that time that release on bail was justified.

32Ms Cokorilo provided a further report dated 15 December 2022, (Exhibit 4), to update her assessment of your readiness for treatment. She confirmed the details of your entrenched drug addiction and the psychological challenges you face in maintaining motivation to change. You were in a self-defeating cycle of severe depression, self-medication, at that time with buprenorphine. I accept that prison is not addressing, and was not addressing, all of your needs. I was not at that stage satisfied that you could be released, indicating an alternative time frame.

33More recently you wrote a letter to the court in recent weeks, (Exhibit 6), indicating that your view of things is different now, after completing an extended stay in residential rehabilitation. You said that this period is the longest you have been clean and that you have learnt a lot. You have newfound appreciation for your family, your partner and other relationships. You also have a job lined up. You report no desire for anything to do with drugs and that you see yourself as staying clean – a first for you. I congratulate you on those changes and for taking on a different point of view. Of course, the next few months will be a testing time.

Sentencing issues

34The gravity of the 2021 offending pales when compared to the trafficking discovered in April 2022. You were the subject of a CCO at the time, which makes that offending even more serious.

35The quantities of the drug you were trafficking were very significant. The cocaine fell short of a commercial quantity by only a few grams. The methylamphetamine was two thirds of a commercial quantity. The harm caused to other members of the community by the distribution of such drugs, including to young people who, like you, are ill-equipped to make properly informed choices about using them, is very, very significant. People who engage in trafficking at this level must be deterred from doing so by the imposition of stern sentences upon those who are caught.

36Your counsel submitted that your post-traumatic stress symptoms reduced your moral culpability, your blameworthiness, for trafficking in accordance with the principles in the case of Verdins.[1] I accept this but only to a degree. Ms Cokorilo described the symptoms as moderate and they help to explain the general difficulties you face, they were reasonably connected to your trafficking but in light of the significant quantities of drugs you had, the weight I give to the effect of these symptoms is very much moderated.

[1] Verdins v R (2007) 16 VR 269

37The submission about your childhood was based on the 'unstable and volatile environment' in which you grew up - factors which were recognised in the case of Bugmy.[2] You reported that you had a poor relationship with your stepfather who was physically violent towards both you and your mother. You were taken into Youth Detention when you were 15. The often-harsh setting of Youth Detention did little to address your mental health issues, rooted in your earlier experience of family violence, or encourage you to properly change your attitudes or engage with your studies.

[2] Bugmy v The Queen (2013) 249 CLR 571

38It is unsurprising then that you started abusing alcohol and other substances around that time, to steer away from the various problems that you faced. In accordance with the principles discussed in the case of DPP v Herrmann,[3] the significance of the 'general' approach as outlined in Bugmy is that the relevance of deprivation to reduce moral culpability does not depend on there being a nexus between deprivation and the offending. Serious childhood deprivation is likely to make an offender less morally culpable than 'an offender whose formative years were not marred in that way',[4] and this reflects the principle of equal justice.

[3] [2021] VSCA 160.

[4] Bugmy at 594 [40].

39In this case, I find that your 'upbringing, marred by violence, disadvantage and substance abuse' has compromised your capacity to mature and to learn from your experiences. This is a key feature of your constitution and it remains relevant to my sentencing exercise, even though you have a long and relevant criminal history. For these reasons I do find that your moral culpability, your blameworthiness, is reduced.

40I also accept that your drug use commenced in your teenage years when you were not equipped to weigh up the consequences it might have on you, your development and your own mental health, let alone how your drug-affected behaviour might affect others. I accept that you have an addiction and that it was linked to your reason for trafficking, albeit not in the quantities with which you were dealing. As the Court of Appeal in Lacey’s case said,[5] this informs my assessment of your moral culpability for the drug-related offending. I find that that is also somewhat reduced for that reason.

[5] R v Lacey (2007) 176 A Crim R 331.

41Deterring others, however, remains an important sentencing factor in cases like this. In your case, specific deterrence, given your history, must also play a role. The significant quantity of drugs, your being under a CCO at the time in all the circumstances requires punishment by way of a significant imprisonment term.

42Your criminal history is lengthy but drug offending of this seriousness does not feature in it, so I do not find the need to place great weight on achieving specific deterrence or community protection by way of prolonged imprisonment.  I will achieve those in other ways.

43While your offending spans two separate time periods and incidents, I will make orders for concurrency in order to ensure that the total sentence is proportionate to what you actually did.

44Your time in custody before being bailed was harder than it should have been and I will give greater weight to that period when calculating your sentence. Also, your timely guilty plea amid the COVID-related trial delays will attract an added reduction.[6]

[6] Brown (aka Davis) v The Queen [2020] VSCA 60, [48]; Worboyes v The Queen [2021] VSCA 169.

45I am not in a position to say that your prospects of rehabilitation are good; they are guarded. However, you are still young and with the right support and considerable effort by you, you will be able to gain insight into your challenges and how to manage them. I expect that your risk of further offending, that task having commenced, is moderate to high, noting what Ms Cokorilo assessed a year ago.

46Both your counsel and the prosecutor submitted that your sentence should involve imprisonment, and I agree.

47Your counsel referred me to the cases of Jaworski [2020] VCC 293, Dimu [2018] VCC 1336, Gelmi [2020] VCC 864, all decisions of this court, as examples of where significant quantities of drugs trafficked have nevertheless resulted in a combination sentence. In those cases offenders had demonstrated one way or another that they were motivated and ready to engage in rehab and they had little or no prior criminal history. After your time at The Cottage, I hope you are at least in that first category, that is, motivated to change. Time will tell.

48You have stayed at The Cottage and engaged in treatment there for about four months, their usual program being 16 weeks, which was formally due to end on Wednesday of this week. 

49As discussed in the case of Akoka [7] I have had regard to the time you have spent at the Cottage and given it weight in accordance with the ratio of about 50 per cent. This is not pre-sentence detention but I have arrived at your ultimate sentence, in part, on the basis of you being restricted in your movements and not free in the community for that period of time.

[7] Aokoka v The Queen [2-17] VSCA 214, [111].

50I had you assessed for a community correction order, and in light of your history with such orders they found you unsuitable (Exhibit A). They raised concerns about comments you made about needing treatment and your engagement in discussion of your offending. Your letter to this court put that in context. I am prepared, to a degree, to accept that there may have been a misunderstanding, but again, time will tell.

Sentence

51I sentence you as follows:

On Charge 1, theft, six months' imprisonment;

On Charge 2, handling stolen goods, one month;

On Charge 3, trafficking cocaine, 360 days' imprisonment and a CCO;

On Charge 4, trafficking methylamphetamine, 300 days' imprisonment plus a CCO;

On Charge 5, possessing PCP, five months;

On Charge 6, possessing MDMA, one month;

On Charge 7, proceeds of crime, six months;

On the summary charge, failing to assist, seven days.

52Forty-seven days of the sentence on Charge 4 is to be served cumulatively upon the sentence on Charge 3.

53That makes a total effective sentence of 407 days' imprisonment, plus a CCO.

54The CCO will be for 12 months with conviction and on condition that over and above the core conditions you engage in treatment and rehabilitation for drug use and mental health and programs, and you are to be supervised.

55I give you this caution about the CCO.  I appreciate you have engaged in extensive treatment at the Cottage.  You may be assessed as not requiring, at this stage, further counselling or engagement in programs, that is entirely up to Corrections.  If you are assessed as requiring to go to group work or counselling or engage in programs, and you refuse to do so or you neglect it, you will be breached.  I expect you know how that works.

56On a breach you will come back to me in this court and I will have the wealth of information that I have now about your progress and I will have powers to re-sentence.  That would include sending you back to prison on these charges.  I do not want to do that.

57As I say with everybody on whom I impose a CCO, if the conditions of the order are unreasonable or impossible for you then you must come back to court and ask for them to be varied – but that is on you.  Do not wait to be breached, take things in hand and demonstrate that you are in control of a better life.

58In terms of the time you have spent in custody, I declare formally that you have served 407 days pre-sentence detention and I direct that this be served as a period already served under this sentence.

59In accordance with s6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed three years and three months and fixed a non-parole period of two years and one month.

Ancillary orders

60I make the unopposed disposal order as sought in relation to the drugs and I make the unopposed forfeiture order as sought in relation to the cash.

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